Daniel W. Miller and The City of Parkersburg v. Kevin Allman ( 2018 )

FILED
April 6, 2018
released at 3:00 p.m.
No. 17-0080 – Miller v. Allman EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
WALKER, J., dissenting: OF WEST VIRGINIA
The majority opinion, among other things, endorses a jury instruction that
creates a new exception to the clear statutory duty of a citizen to yield the right of way to
an approaching emergency vehicle. The new syllabus point adopted by this Court is
contrary to the clear language of West Virginia Code §17C-9-5 (Repl. Vol. 2017) and is
nothing short of legislating from the bench.
Under the guise of a plain meaning analysis, the majority effectively
modifies West Virginia Code §17C-9-5 to limit the duty to yield to a driver’s subjective
perception of an approaching emergency vehicle. The governing statute provides in
relevant part:
Upon the immediate approach of an authorized emergency
vehicle equipped with at least one flashing lighted lamp of a
color authorized by section twenty-six, article fifteen of this
chapter, which is visible under normal atmospheric conditions
form a distance of five hundred feet to the front of such vehicle
other than a police vehicle when operated as an authorized
emergency vehicle, and when the driver is giving audible
signals by siren, exhaust, whistle, or bell:
(1) The driver of every other vehicle shall yield the
right-of-way and shall immediately drive to a position parallel
to, and as close as possible to, the right-hand edge or curb of
the roadway clear of any intersection and shall stop and
remain in such position until the authorized emergency vehicle
1
has passed, except when otherwise directed by a police officer.
. . . [1]
I agree with the majority that this statute is clear and unambiguous; however, I find that
the statute imposes merely an objective perception requirement rather than a subjective
one. That is, once an approaching emergency vehicle has activated its lights and siren,
surrounding drivers are deemed to have constructive notice of the vehicle. Therefore, the
trial court’s instruction, which limited the duty to yield to a driver’s subjective perception,2
is clear error as it does not accurately reflect the law and has the reasonable potential to
1
W. Va. Code §17C-9-5(a)(1) (Emphasis added).
2
The instruction given by the trial court stated:
Upon the immediate approach of an authorized emergency
vehicle, such as a police car, operating emergency lights and
siren, West Virginia Code §17C-9-5 requires that the driver of
every other vehicle shall yield the right-of-way, and shall
immediately drive to a position parallel to, and as close as
possible to, the right-hand edge or curb of the roadway clear of
any intersection, and shall stop and remain in such position
until the authorized emergency vehicle has passed, except
when otherwise directed by a police officer.
The required compliance with that code section is contingent
upon the other vehicle driver having the opportunity to
perceive, see or hear, the approaching police car. That other
driver is not expected to yield and pull over in response to the
approach of an emergency vehicle if that driver does not see
or hear the emergency vehicle within sufficient time to react as
required by law. Also, the emergency vehicle law does not
operate to the driver of a police car, regardless of his lights and
siren, from the duty to drive with due regard for the safety of
all person using the highway.
(Emphasis added).
2
mislead the jury as to the correct legal principle.3
The majority also misapplies our prior decision in Davis v. Cross.4 The issue
in Davis, which involved a collision between an emergency vehicle and a motorcycle, was
whether the operator of the emergency vehicle had activated the siren and lights, thereby
excusing him by statute5 from observing a stop sign. The plaintiff in that case, who was
3
State v. Miller, 197 W. Va. 588, 607, 476 S.E.2d 535, 554 (1996).
4
Davis v. Cross, 152 W. Va. 540, 164 S.E.2d 899 (1968).
5
The statute primarily at issue in Davis was West Virginia Code § 17C-2-5 (1951),
which stated as follows:
(a) The driver of an authorized emergency vehicle, when
responding to an emergency call or when in the pursuit of an
actual or suspected violator of the law or when responding to
but not upon returning from a fire alarm, may exercise the
privileges set forth in this section, but subject to the conditions
herein stated.
(b) The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this
chapter;
(2) Proceed past a red or stop signal or stop sign, but
only after slowing down as may be necessary for safe
operation;
(3) Exceed the speed limits so long as he does not
endanger life or property;
(4) Disregard regulations governing direction of
movement of turning in specified directions.
(c) The exemptions herein granted to an authorized emergency
vehicle shall apply only when the driver of any said vehicle
3
driving the motorcycle, and one other witness testified that they did not hear the siren or
see the lights. Several other witnesses — including the emergency vehicle operator —
testified that the lights and siren were activated. We stated, “it must be shown by a clear
preponderance of the evidence that he [operator of the emergency vehicle], immediately
prior to and at the time of the collision, was sounding an audible signal. Also, the evidence
must reveal that the vehicle was equipped with and displayed a red light visible from a
distance of five hundred feet to the front of such vehicle.”6 We further observed in
language directly on point to the current issue that once the lights and siren were activated,
the emergency vehicle operator
[H]ad a right to believe that other drivers in the area would
observe the provisions of Code, 1931, 17C-9-5, as amended.
That statute provides, in effect, that upon the immediate
approach of an authorized emergency vehicle properly
equipped and operated with the required audible signal and
lights, the driver of every other vehicle shall yield the right of
while in motion sounds audible signal by bell, siren, or exhaust
whistle as may be reasonably necessary, and when the vehicle
is equipped with at least one lighted flashing lamp as
authorized by section twenty-six, article fifteen of this chapter
which is visible under normal atmospheric conditions from a
distance of five hundred feet to the front of such vehicle, except
that an authorized emergency vehicle operated as a police
vehicle need not be equipped with or display a warning light
visible from in front of the vehicle.
(d) The foregoing provisions shall not relieve the driver of an
authorized emergency vehicle from the duty to drive with due
regard for the safety of all persons, nor shall such provisions
protect the driver from the consequences of his reckless
disregard for the safety of others.
6
Id. at 544, 164 S.E.2d at 902.
4
way and stop until such emergency vehicle has passed. This
the plaintiff failed to do, even though all of the positive
evidence in the record showed unequivocally that the vehicle
driven by the defendant sounded an audible signal and
exhibited the necessary red lights.[7]
This observation directly negates the majority’s conclusion regarding the jury instruction
in this case and its new point of law. Not only did the jury instruction misstate the
appropriate legal standard, but also it was prejudicial to Officer Miller as it prevented the
jury from determining whether Mr. Allman should have observed the emergency vehicle’s
lights and siren with sufficient time to react and whether Mr. Allman should have yielded
to the emergency vehicle. Additionally, it rendered meaningless the testimony of several
eyewitnesses who testified that they saw and heard the emergency vehicle.
Accordingly, I would reverse and remand for a new trial with direction to
correct the instruction.
7
Id. at 546-47, 164 S.E.2d at 903.
5